Should Ketanji Brown Jackson Recuse Herself from the Harvard Affirmative Action Case?

And is there a strong case that Harvard is discriminating against Asians?

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Above: Harvard Hall, Harvard University (Photo by Mario Roberto Durán Ortiz)

Next term, the Supreme Court will hear challenges to the admissions practices of Harvard University and the University of North Carolina, on the basis that admissions officers at those institutions discriminate against Asian applicants, in an effort to make more space for other minorities. The lawsuit against Harvard has raised an issue as to whether President Biden’s nominee Ketanji Brown Jackson will have to recuse herself from that case, due to her service on an oversight board at Harvard. The Wall Street Journal ran an article on the topic this past Friday which sets forth the basic facts:

Supreme Court nominee Ketanji Brown Jackson’s service on a key governing board at Harvard University raises questions about whether, if confirmed, she would have to sit out an early blockbuster case in the high court’s next term about affirmative action in college admissions.

The court in its October term is set to consider whether Harvard’s use of race-conscious admissions policies violates federal civil-rights law. In a companion case, the court is considering whether admissions policies at the University of North Carolina violate the Constitution’s guarantee of equal protection. Together, the cases, both led by conservative legal activist Edward Blum, give the court an opportunity to decide whether to prohibit the use of race in the admissions process.

. . . .

Since 2016, [Judge Jackson] has served on Harvard’s Board of Overseers, a 30-member body elected by alumni. Her six-year term ends this year.

The board, which typically meets five times a year, conducts periodic reviews of academic departments and provides “confidential counsel” to the university’s leaders “on a range of initiatives, priorities, and plans,” according to the school.

The board, whose origins date to the 17th century, historically has advised the university administration on admissions policies. It isn’t known, though, what role, if any, its elected members had in developing or overseeing the race-conscious admissions policies under dispute. A spokesman for Harvard declined to comment.

The Journal gives quotes from one expert favoring recusal and another opposing it. But what do law and precedent say? Ought she recuse or not? And do the plaintiffs in these lawsuits have a good case?